which he said the child was given to him by the father to hold at about 6:45 on the evening of September 14, that accused drank some whiskey while holding the child, and that the baby fell asleep. He said he took the infant to his quarters, locked the door, and returned to the bar; he added that the child's father asked for it at about 7:30, but accused said the baby was asleep. The applicant stated that he remembered nothing further until about 5:15 the following morning when he awakened in his quarters and saw the youngster in bed with him. He said "there was blood on the baby, on me, and on my bed," that "there was blood on my penis and all around the lower part of my body," and that he "looked at the lower part of the baby's body and saw that she was bleeding." He then took the baby to its parents and returned to his own quarters, where he began cleaning the blood from the sheet, his person, and his clothing.

The issue of the accused's sanity was raised at the beginning of the trial. Captain Steinberg, neuropsychiatric chief of the 34th General Hospital, testified that he had examined the petitioner, and expressed the opinion that the accused, on the night of the offense, though not psychotic, had pre-psychotic traits and was suffering from mental disease to the extent that he was unable to adhere to the right rather than the wrong, but that he was of sufficient understanding at the time of the trial to cooperate intelligently in the conduct of the defense. Captain Silverman, 361st Station Hospital psychiatrist, testified that he was a member of a board convened to determine the sanity of the accused. He identified the record of proceedings of the board, and stated that all members of the board were psychiatrists. He outlined the many scientific mentality tests given petitioner and the results. The report of the board was introduced in evidence by stipulation; it stated the conclusion that at the time of the alleged offense, the accused was not psychotic, was able to distinguish right from wrong, and was able to adhere to the right. The report said the unanimous opinion of the members was that the accused was able to understand the nature of the proceedings against him and cooperate intelligently in his defense.

Three enlisted men testified concerning the personal mannerisms of the accused, and none indicated observation of any traits that would cause belief that he was psychotic.

The court denied the defense motion for a finding of not guilty based upon the mental condition of the accused at the time of the offense.

Defense evidence presented at the trial, other than that concerned with the issue of sanity, was confined to the reputation and efficiency of the accused, and testimony by Captain Rose of the

34th General Hospital. This officer, who was a witness for the prosecution concerning examination of the infant shortly after the crime, was recalled by the defense and said that the victim had made satisfactory progress toward recovery by the time of the trial. The accused elected to remain silent.

Most of the applicant's attack upon the proceedings of the sanity board is based upon such trivia as to be classed as frivolous. He complains that the board's report was dated two days before accused was dismissed from the hospital, that in two places the board recorded his serial number erroneously, that he was only before the board ten or fifteen minutes whereas it was testified that he was before it for two hours, that only two medical officers examined him and other examinations were conducted by enlisted men, and that Captain Silverman testified that he did not know the date of accused's arrival at the hospital for examination. None of these claims state any substantial reason for rejecting the Board's findings. The statement of a federal circuit court is appropriate here: "If it can ever be said that a contention falls through the mere statement of it, this one does." It is apparent that the board, composed of psychiatrists, conscientiously performed its sworn duty to examine into and determine the sanity of petitioner. No attack of substance is made upon their study of his mentality. It has not been shown that normal examining procedures were omitted, nor that a lengthy personal examination of complainant by the board members was a prerequisite to a fair and intelligent decision. The regularity of the official actions of public officials is presumed."

The petitioner next complains of the sufficiency of the evidence upon which he was convicted, relying upon the testimony of Captain Rose, who examined the child following the attack. While this medical officer stated that he could not be positive as to the kind of object that had penetrated the vagina of the child, yet the web of circumstantial evidence against Apley, pointing to rape, including his attitude (when he was inflaming his baser feelings with drink), in refusing to surrender the female child, later discovery of blood in the child's genitals, on its kimona and the bed, when considered in the light of the accused's admission that there was blood on his penis when he awoke the morning after the occurrence, compels the conclusion that the accused was guilty as charged. It is not necessary to a conviction that the

1 Robinson v. United States, 128 F. 2d 322, 323, hn 4 (App. D. C. 1942).

2 Cf. Holloway v. U. S., 148 F. 2d 665, 667, hn 5 (App. D. C. 1945) cert. den. 334 U. S. 852.

3 Gonzales v. Ross, 120 U. S. 605, 616, hn 4 (1887); CM 239068, Knierim, 25 BR 35, 39 (1943).

elements of the offense be proved by direct evidence; circumstantial evidence has probative value equal to that of testimonial evidence."

It is asserted by the accused that three of the Okinawan witnesses failed to identify "the Sgt. Apley they were talking about." While the record fails to show that these witnesses were asked to identify the accused, it is too plain to be successfully controverted that the subject of their testimony was none other than the individual then and there on trial. No motion to strike the testimony was offered and when applicant's own words tie him to the testimony, the point becomes minor and not prejudicial. It is the general rule that minor errors are not fatal unless they injuriously affect the substantial rights of the accused, but more important is the fact that since petitioner considered and treated the omission as not erroneous by failing to object to such testimony he must be considered as bound by the rule that the victim of alleged error cannot be allowed to nurse it along to the point of reversibility and then take advantage of a situation which by his silence he has helped to create.'

The credibility of three witnesses, Renzo Shinabuku, Sachiko Shimabuku, and Rinshin Shimabuku, is attacked by the petitioner because, he avers, "they stated they jerked the door to my room to try to open it, and heard music from there at 11:30 that night." The accused contends: that they perjured themselves by this testimony because an exhibit showing a photograph of the door allegedly indicates that fine wire was used to hold the door closed and he urges that this would have broken had they tried to open it; that Agent Reeves testified that the door would have come open if pressure had been applied; and that the accused had but a small radio which would only receive broadcasts from the Okinawa station which went off the air at 11:15 p.m. after a news broadcast. These assertions of the accused are not adequately supported by the record. Renzo testified that he "tried to open the door and it didn't open;" Sachiko fixed the time of her visit to accused's quarters at "about 11:00-about 11:30;" and Rinshin said he last tried to get the baby "about 11:30," adding that he "jerked the door and tried to get it open, but nobody answered." Upon being questioned about hearing a radio, Rinshin said, "It has been quite a time since this happened, but I do recall some music playing."

▲ Thacker v. United States, 155 F. 2d 901, 902, hn 5 (5th Cir. 1946); cf. Peace v. United States, 278 F. 180, hn 1 (7th Cir. 1921).

Christie v. Callahan, 124 F. 2d 825, 839, hn 16 (App. D. C. 1941). Cf. Lukon v. Pennsylvania Railway, 131 F. 2d 327, 329, hn 5 (3d Cir. 1942).

Article of War 37, 10 U. S. C. 1508.

7 Tomsett v. State of Ohio, 146 F. 2d 95, 98, hn 2 (6th Cir. 1944), cert. den. 324 U. S. 869; United States v. 5 Cases, 179 F. 2d 519, 523, hn 13 (2d Cir. 1950).

From this review of the pertinent portion of the record, it cannot be concluded that the entire testimony of these witnesses is to be disbelieved and the point therefore is determined to be without merit.

Passing to the letter which the applicant has inclosed with his petition, the first assertion concerns the conduct of his counsel as mentioned above. The report of pre-trial investigation affirmatively shows that the accused requested Lieutenant Vinet as counsel there, and the record reveals that this officer also served as assistant defense counsel at the trial. At the beginning of the trial, according to the record, the petitioner stated that he desired to be defended by the regularly appointed defense counsel and assistant defense counsel, both members of the Judge Advocate General's Corps. One convicted in a court-martial may not complain that he was inadequately represented by his own deliberately selected counsel. similar to that here alleged by the accused; the defendant had but fifteen minutes prior to trial in which to confer with his counsel. The court refused relief upon appeal, observing, "There is shown no lack of knowledge by counsel of either the facts or the law upon which counsel advised his client." The complaint that counsel failed to conduct the defense in the manner desired by the petitioner is equally unworthy of acceptance, for it is recognized that counsel has discretion as to the manner in which he will conduct the defense.10 No indication has been discovered that counsel failed to represent their client with loyalty, intelligence, diligence, and professional skill.

In United States v Wight, a situation existed

The inference that the entire circumstances of the offense may have been "framed" by disgruntled Okinawan natives is as fantastic as it is unproved. The pre-trial statement of the petitioner relates that, on the morning he found the baby on his bed, "As I left the hut, I had to unfasten the wire catch up [sic] the door from the inside in order to get out." This, even with nothing more, establishes that other persons could not have planted the evidence as inferred by the accused. To believe that someone would injure the baby in the horrifying manner shown in evidence and place blood upon the lower anatomy of the accused, merely for revenge for failure to re-employ, is beyond the realm of reasonableness and stretches the long reach of credibility too far.

The contention that "there was no proof given of what caused the injury to the child or how it happen [sic]," has been suffi

8 Adams v. Hiatt, 79 F. Supp. 433, 434, hn 3 (M. D. Pa. 1948).

United States v. Wight, 176 F. 2d 376, 378, hn 1 (2d Cir. 1949). Cf. Avery v. State of Alabama, 308 U. S. 444, 452, hn 7 (1940).

10 Lewis v. Sanford, 79 F. Supp. 77, 78, hn 5 (N. D. Ga. 1948); United States v. Gutterman, 147 F. 2d 540, 542, hn 3 (2d Cir. 1945).

ciently discussed, and ample authority has been cited to the effect that adequate circumstantial evidence will suffice to prove the elements of a crime. If the accused "blacked out" on the night of the offense, such a factor could only be of importance in determining the necessary mental capacity for him to have formed an intent. It is well settled that a man ordinarily is "presumed to intend to do what he actually does."" Lack of mental capacity would be a defense if caused by some form of psychosis, providing it was such as to deprive the accused of sufficient understanding to distinguish right from wrong and to adhere to the right," but this matter was fully before the court, and was adjudicated there and before the reviewing authority; nothing has been discovered which would indicate that their decision was wrong. Apley moved about freely when he was retaining custody of the child, he talked rationally, if unreasonably, secured his door against interference, and although undoubtedly in the process of fortifying himself with alcohol, did not reveal himself as he prepared the stage for his sordid orgy to be in an unconscious or even such a drunken condition as to escape responsibility for the act charged; if his later alleged incapacity was brought on by voluntary intoxication, it would not be a defense, providing he was able to form an intent." The circumstances in evidence point to the formation of an intent early in the evening when he took the female child to his bedroom and refused to surrender her while his drinking was in its primary stages. He offers no explanation to negative the indication of carnal desire.

The reputation and military record of the accused, prior to his offense, were adequately shown by evidence given on his behalf at the trial; therefore, if consideration of these was appropriate in determining the likelihood that he did not commit the offense, the court had ample opportunity for such consideration. The asserted statement by the trial judge advocate to the petitioner (it is not substantiated that such an incident occurred), allegedly speculating upon the sentence that would be given by the court, could have no bearing upon the fairness of the accused's trial. The sentence is within the province of the judicial authorities rather than of the trial judge advocate. If the prosecution entertained the belief that only a short sentence was justified, such belief is certainly not evident from the vigorous manner in which it presented the evidence, as shown by the record.

*

11 Haugen v. United States, 153 F. 2d 850, 853, hn 6 (9th Cir. 1946).

12 Lee v. United States, 91 F. 2d 326, 330, hn 10 (5th Cir. 1937), cert. den. 302 U. S. 745. 13 Respublica v. Weidle, 2 Dall. (2 U.S.) 88, 90, hn 2 (1781). Cf. Bishop v. United States, 107 F. 2d 297, 301, hn 7 (App. D.C. 1939).